TRUST PROTECTOR

The Protector is a critical appointment in any asset protection structure. The powers given to a Protector in the trust deed normally include a standard power to remove and appoint trustees. This power is the ultimate control remaining vested in the settlor and gives the settlor comfort that the trust will be administered in accordance with his wishes. However, the same power also creates a weakness in an asset protection structure. A Protector residing within the jurisdiction of the Court hearing a challenge to the trust may be forced by a Court order to remove the offshore trustee and to appoint in its place a domestic trustee within the Court’s jurisdiction. There are also other orders that might be sought against a Protector to weaken an asset protection structure. It is critical therefore that (at least during the period when there is a threat to the trust), the Protector not be resident within the jurisdiction of the Court.

There are also situations when it is necessary for the Protector to act of its own initiative to protect the trust against litigation. For example, if there is a domestic trustee or co-trustee within the Courts jurisdiction the Protector may need to remove that trustee to insulate the trust from any actions bought in that Court. The Protector similarly must not be exposed to orders of that Court preventing it taking such action.

These powers of a Protector must therefore be looked at carefully when a new trust is drafted. The power to veto trustee’s decisions must be exactly that, and not a power to approve trustee’s decisions. Consideration must also be given to the extent of Protectors powers as a Protector may also be held to be a fiduciary with fiduciary duties. A trust deed may need to contain releases from liability as well as indemnities from the settlor.

T&F has a depth of experience in trust litigation giving it a unique ability to perform the duties of a Protector in difficult cases. This service is provided via a wholly owned and controlled subsidiary, T&F Protectors Ltd.

T&F Protectors Ltd will also accept appointment as a Protector of trusts domiciled in other jurisdictions. In these situations T&F will need to carry out a review of the trust document and the relevant law in that jurisdiction before accepting appointment.